The Prohibition on Torture and Cruel, Inhumane or Degrading Treatment or Punishment
The prohibition on torture and other cruel, inhumane and degrading treatment or punishment is found in all major international human rights treaties and numerous human rights instruments. International law has introduced strict rules in relation to the prohibition on torture or cruel, inhuman and degrading treatment. The peremptory nature of the right to freedom from torture and other inhumane treatment is substantiated by the fact that these rights cannot be derogated from under international human rights law even in the gravest of circumstances.[1] The international legal framework places a responsibility on States to protect both the physical and mental integrity of individuals.[2] Therefore, Pakistan is under a positive obligation to ensure that the prohibition of torture and ill-treatment is effectively implemented.
- International Human Rights Safeguards and Standards
Significant efforts have been made to eradicate torture in international law. Article 5 of the Universal Declaration of Human Rights 1948 reads “No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment.” This Article is widely accepted as expressing customary international law. There is a wide array of international documents that prohibit acts of torture, abuse and ill treatment. The United Nations, in 1984, established a binding treaty to deal exclusively with the subject of torture, cruel, inhumane or degrading treatment or punishment.[3] In addition to this, many other international instruments condemn degrading treatment. Few of them are mentioned below.
1- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture)
2- International Covenant on Civil and Political Rights (arts. 4, 7, 10)
3- United Nations Standard Minimum Rules for the Treatment of Prisoners (art. 31)
4- European Convention for the Prevention of Torture and Inhuman or Degrading Treatment
5- American Convention on Human Rights (art. 5)
6- Arab Charter on Human Rights (art. 8)
7- Cairo Declaration on Human Rights in Islam (arts. 19, 20)
| Figure 4.1 – Prohibition on Inhuman or Degrading treatment in International Law
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As Pakistan is party to International Covenant on Civil and Political Rights (ICCPR) and Convention Against Torture (CAT), it has been been under scrutiny by the Human Rights Committee (HRC) and Committee on Torture (CAT) with regards to human rights particularly that of torture. In its review the Human Rights Committee has underlined the need of incorporating the rights as outlined by the covenant in the domestic courts of Pakistan which includes training judges, lawyers, prosecutors and other officials to prevent torture.[4] The review also pointed to the need for the National Commission for Human Rights to investigate the violations by the members of intelligence agencies.[5] The committee is perturbed by the fact that there is no defined definition as to what constitutes torture in Pakistan’s domestic law in the absence of which various modes of investigations are employed by law enforcement officials and members of the agencies.[6]
The Committee Against Torture in its assessment of Pakistan’s track record on torture has recommended several steps to curb torture in Pakistan’s criminal justice system.[7] The committee has stressed on the need of prohibiting torture under law and has further stressed on the need of punishing police officers engaged in torture. It has also recommended increasing the reliance on forensic science to secure confessions.[8] The committee has specifically recommended the establishment of police oversight bodies at the provincial and district levels.[9] It has further urged Pakistan to take legislatives steps and review the Custodial Death and Custodial Rape bill (2004) to ensure that its in conformity with the convention.
Furthermore, the NCHR maintained that Pakistan should withdraw its reservations attached with CAT, ratify it to the fullest and promulgate domestic legislation, which should include a definition of torture; something that has been missing in Pakistan’s the criminal justice system and all the laws associated with it.
- Constitutional Safeguards
There are several provisions of the Constitution of Pakistan that prohibit acts of torture, abuse and ill-treatment. Article 14(2) of the Constitution states that “no person shall be subjected to torture for the purpose of extracting evidence”, and Article 10 provides safeguards as to arrest and detention. The safeguards regarding arrest and detention ensure that even during deprivation of liberty a person must have access to fundamental rights guaranteed under the Constitution. Article 9 specifically protects the right to life and liberty by stating that no person can be deprived of their life or liberty unless done so in accordance with law. This right is widely interpreted and has led to a vast extension of substantive rights including freedom from torture and abuse.
- Domestic Law and Jurisprudence
1. Domestic Law
Protection of Liberty
The Pakistan Penal Code 1860 and Chapter XXXIX of the Code of Criminal Procedure 1898 includes a number of procedural safeguards to protect those who have been detained. These provisions prohibit wrongful arrest and confinement and are designed to prevent abuse during arrest and detention that would curtail the liberty of any person.
There are several provisions in domestic law to ensure that Article 10 of the Constitution is not violated during a person’s detention. As per Sec. 61 of the Code of Criminal Procedure 1898, once a person concerned or suspected of having committed a cognizable offence is arrested by a police officer it is expected that he/she would complete the investigation without any loss of time and within twenty-four hours of the arrest. Sec. 167 of Cr.P.C. 1898 authorizes the detention of any person by the police beyond 48 hours up to a maximum of 15 days subject to the orders of a Magistrate in cases where the police are unable to complete the investigation within twenty-four hours of arrest. The production of an accused person under custody of a police officer along with entries made by them in the diaries, before a Magistrate are mandatory requirements of law.
Sec. 103 of the Cr.P.C. 1898 requires the police to conduct house searches in the presence of two or more witnesses and under Sec. 52 women are to be searched by female officials. Moreover, the Police Order 2002[10] imposes penalties on police officers who may abuse a person in their custody. The Order also provides complaint mechanisms against the police.
- Prohibition on Torture
Domestic law is silent on the definition of torture. Sec. 332 of the Pakistan Penal Code 1860 defines hurt but does not provide any purposive definition of torture. Whether it includes both mental and physical suffering is also not clear. Sec. 337-K imposes imprisonment up to 10 years on anyone who is found to have been using torture as a means of extracting evidence. Sec. 348 also prohibits wrongfully confining someone or injuring someone to extort a confession.
Moreover, under the Punjab Code of Conduct for Punjab Police Officers 2011, no police officer may inflict, instigate or tolerate any act of torture or inhumane treatment. Sec. 156(d) of the Police Order 2002 also imposes penalties of a fine or imprisonment of up to five years on police officers who inflict ‘violence or torture’ on a person in their custody.
The Qanun-e-Shahadat 1984 renders any confession made under police custody inadmissible as evidence[11] and makes all statements, confessional or otherwise, made in police custody inadmissible in Court unless they are made in the presence of a magistrate.[12] These rules were made to address the fact that confessions, in many cases, are extracted through custodial torture. An exception to this exists in cases brought under the Anti-Terrorism Act of 1997 wherein Sec. 21H states, “…in any court proceedings held under this Act the evidence (which includes circumstantial and other evidence) produced raises the presumption that there is a reasonable probability that the accused has committed the offence, any confession made by the accused during investigation without being compelled, before a police officer not below the rank of a Distt. Superintendent of Police, may be admissible in evidence against him, if the Court so deems fit.” However, in practice Anti-Terrorism Courts require substantial corroborating evidence for such a confession to be acceptable. There continues to be concern that law enforcement personnel resort more frequently to torture and extrajudicial executions if given wide-ranging powers. In particular, by placing time limits on the investigation process, ATCs can make investigating officials prone to falsifying evidence and using coercive methods with suspects. A 2009 amendment to the Anti-Terrorism Act, which permits “extrajudicial confessions” to be used as evidence, has been seen in some quarters as an invitation for investigators to torture suspects.[13]
The Torture, Custodial Death and Custodial Rape (Prevention & Punishment) Bill 2014 was introduced in the National Assembly to criminalize torture. The objective of the Bill was to provide enabling legislation that defines torture and criminalises it as suggested in the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment however, the bill lapsed in 2015 after 90 days.
In 2018, the government reported that it had “prepared a Torture and Custodial Death (Prevention & Punishment) Bill, 2018, in consultation with relevant stakeholders, to harmonize the national legislation with the provisions of the subject Convention. However, this Bill has not been tabled despite commitments made by the Federal Minister of Human Rights in January 2019 to table the bill in the next National Assembly session.[14]
In October 2019, the Torture and Custodial Death (Prevention & Punishment) Bill 2019 was submitted to the Senate Secretariat. The bill as approved by the Senate’s Functional Committee on Human Rights has suggested imprisonment of three to ten years and a fine of Rs 2 Million if anyone is found guilty of torture in custody.[15] Moreover the bill has stipulated a fine of Rs 3 million for death in custody and categorized such acts as non-bailable offence.[16] The bill also binds the courts to issue verdict on such issues within 60 days.
2. Jurisprudence
Dr Yasin Zia v. Government of Punjab[17]
The Lahore High Court in the case ordered installation of the CCTV cameras for round the clock surveillance at police stations. This was to minimize instances of verbal and physical torture of inmates.
Muhammad Amin v. The State[18]
In this case, public functionaries were charged with causing hurt contrary to provisions of PPC, as read with Sec. 156 of the Police Order. The Sindh High Court took serious notice of the allegations against the accused (public functionaries), that pertained to maltreatment, unlawful confinement and torture of a citizen. The court held that such offences were to be taken very seriously and rejected their plea for bail in the case.
Abdul Baqi v. The State[19]
In the case, the prosecution had produced circumstantial evidence in the shape of extra-judicial confession. It was stated that for awarding conviction on the basis of extra judicial confession, three-fold proof was required, i.e. firstly, it was in fact made, secondly; it was made voluntarily, and thirdly; it was made truly without any coercion or torture.
Attaullah v. The State[20]
The case concerned the applicability of Article 38 and 39 of Qanun-e-Shahadat 1984. The confession by the accused in police custody was voluntary according to the prosecution. However, it was established that the confessional statement was induced via torture and therefore, the confessional statement was not admissible under the law.
Dr. Mehmood Nayyar Azam v. State of Chhatisgarh[21]
The victim in the case sought public law remedy for grant of compensation and filed constitutional petition before the High Court contending that actions of police and other authorities affected his fundamental right to live with dignity and that he should be granted compensation. It was revealed that the victim was in fact tortured and humiliated at the hands of the police officers. Therefore, the appeal was allowed and a sum of Rs. 5 lacs were granted to the victims as a compensation.
Benazir Bhutto v. President of Pakistan[22]
It was held that acts such as extra-judicial killings or custodial deaths, arrests and torture by the State violate the fundamental rights guaranteed under the Constitution of Pakistan including Articles 9, 14 and 25 and these rights cannot be derogated from except as provided by the law, for there was no law to justify such an act perpetrated by the State machinery.
Mst Rohaifa v. Federation of Pakistan (Adialla 11 case)[23]
A significant case with regards to torture, inhumane and degrading treatment is that of the ‘Adiala 11’ where the abuse of suspects at internment centres established under the Actions in Aid of Civil Power Regulation 2011 became well documented. The Supreme Court of Pakistan stated that authorities were under a responsibility to comply with the order of the Court in letter and spirit and must produce the detained persons before the Supreme Court in safe custody.
[1] Article 2(2) CAT, Article 4(2) ICCPR
[2] Article 7 ICCPR and General Comment No. 20 CCPR (United Nations Compilation of General Comments, p.139, para 2.)
[3] UNGA, ‘Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT)’ 10 December 1984
[4] HRC, Concluding observation on the initial report of Pakistan, CCPR/C/PAK/CO/1, 23 August 2017
[5] Ibid para 10
[6] Ibid para 25
[7] CAT, Concluding observations on the initial report of Pakistan, CAT/C/PAK/CO/1
[8] Ibid para 7(d)
[9] Ibid para 9(c)
[10] Police Order 2002 (C.E. Order No.22 of 2002)
[11] Article 38 Qanun-e-Shahadat Order 1984 (X of 1984)
[12] Article 39 and 40 Qanun-e-Shahadat Order 1984 (X of 1984)
[13] Personal interview, Iqbal Haider, co-chairperson of the Pakistan Human Rights Commission, Karachi, Pakistan, February 2010.
[14] Imran, Myra. “Ministry Plans to Present Anti-Torture Bill in next NA Session.” The News International, January 10, 2019. https://www.thenews.com.pk/print/416877-ministry-plans-to-present-anti-torture-bill-in-next-na-session.
[15] Article 39(1)(2) Torture and Custodial Death (Prevention and Punishment) Act 2020
[16] Article 4(1) Torture and Custodial Death (Prevention and Punishment) Act 2020
[17] 2016 PLD Lahore 94
[18] 2007 P.Cr.L.J 1303
[19] 2019 P.Cr.L.J Quetta-High-Court-Balochistan 442
[20] 2019 PLD Quetta High Court Balochistan 75
[21] 2013 SCMR Supreme Court 66
[22] 1998 PLD Supreme Court 388
[23] 2012 SCMR 388